Citation Nr: 1418479
Decision Date: 04/25/14 Archive Date: 05/02/14
DOCKET NO. 12-18 394 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for hypertension, to include as secondary to type 2 diabetes mellitus.
2. Entitlement to service connection for bilateral hearing loss.
3. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Casey, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from February 1967 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the Veteran's record. At the May 2013 hearing, the Veteran was afforded a 60-day abeyance period to provide additional evidence to substantiate his claims. That period of time lapsed; lay statements and private medical records were received.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required.
REMAND
At the May 2013 hearing, the Veteran testified that hypertension and diabetes were initially diagnosed with in the same year by a Dr. Rickerson, and that he has been seen by Dr. Rickerson on an ongoing basis since. A review of the Veteran's record found a July 2000 private treatment record from Northeast Baptist Hospital that shows Dr. Rickerson as the admitting physician and shows a diagnosis of diabetes mellitus type II. Records of Dr. Rickerson's initial diagnosis/treatment of the Veteran's diabetes mellitus and hypertension are not associated with the record. As such records are pertinent to the claim of service connection for hypertension, they must be sought.
The Veteran also testified that he has had ringing in his ears ever since he returned from Vietnam, and identified records of postservice periodic audiological evaluations he underwent at Kelly Air Force Base (AFB) and Randolph AFB from 1969 to 1992 for civilian employment with the Department of Defense. As VA has a duty to assist the Veteran in obtaining records from other federal government agencies where it has "actual notice" that such records exist, they must be sought.
Furthermore, at the May 2013 hearing, the Veteran identified records of VA audiological evaluations he underwent at Audie L. Murphy Memorial VA Hospital and Frank Tejeda VA Outpatient Clinic in 1996 or 1998. Such records are not associated with the record on appeal. As records of any earlier diagnosis/treatment he received for hearing loss and tinnitus are evidence pertinent to his claims, and VA records are constructively of record, VA's duty to assist mandates development for the records.
Finally, the March 2010 VA audiological examiner indicated that she did not review private medical records in rendering her opinion, and the October 2009 VA examination report does not reflect whether the Veteran's file (including private treatment records) was reviewed. The Board finds a remand for an addendum opinion that encompasses review of the Veteran's record is necessary.
Accordingly, the case is REMANDED for the following:
1. The AOJ must ask the Veteran to identify the provider(s) of any (and all) evaluations and/or treatment he has received for hypertension and diabetes mellitus type II (records of which are not already associated with the record), to specifically include all evaluations or treatment for hypertension and diabetes mellitus he received from Dr. Rickerson prior to July 2000 and reports of periodic audiological evaluations for civilian employment with the Department of Defense conducted at Kelly Air Force Base (AFB) and Randolph AFB from 1969 until 1992, and to provide all releases necessary for VA to secure private records of such evaluations and treatment. The AOJ should obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. If such records are unavailable, the reason why that is so must be noted in the record.
2. The AOJ should secure for the record copies of complete clinical records of all VA audiological evaluations/treatment the Veteran received (records of which are not already associated with the record on appeal) to specifically include audiological evaluations at Audie L. Murphy Memorial VA Hospital and Frank Tejeda VA Outpatient Clinic from 1996 to 1998.
3. After the records sought above are associated with the record on appeal, the AOJ should return the entire record to the March 2010 VA examiner for review and an addendum opinion regarding the etiology of the hearing loss and tinnitus that encompasses review of the record.
If the March 2010 VA examiner is unavailable to provide the addendum opinion sought, the AOJ should arrange for another appropriate provider (audiologist or otologist) to review the record and provide the opinion.
4. The AOJ should then review the record, arrange for any further development indicated (e.g. a medical nexus opinion regarding hypertension that encompasses any new information received pursuant to this remand), and the readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).